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2020-TIOL-2141-HC-DEL-NDPS
Rohit Vs CBN
NDPS - Petitioner has filed present petition under section 482 Cr.P.C . and prays for setting aside of impugned order dated 09.07.2020 passed by learned MM (New Delhi), Patiala House Courts, Delhi for the offences punishable under section 8/21/22/28/29/30 of NDPS Act and stay the operation of order dated 09.07.2020 or any proceedings emanating therefrom till disposal of the present petition.
Held: No sooner the seizure of any Narcotic Drugs and Psychotropic and controlled Substances and Conveyances is effected, the same shall be forwarded to the officer in-charge of the nearest police station or to the officer empowered under Section 53 of the Act - The officer concerned shall then approach the Magistrate with an application under Section 52A(ii) of the Act, which shall be allowed by the Magistrate as soon as may be required under Sub- Section 3 of Section 52A - As per the prosecution case, Insp. Praveen Dhull prepared a list of recovered articles, documents, Panchnama, etc. but not by Insp. Manoj Narawal, thus, the said Manoj Narawal is neither officer in-charge of the police station nor empowered under section 53A of NDPS Act who can dispose of the drugs or nor move an application before the Magistrate for disposal of drugs as defined under sub-section 2 of section 52A of NDPS Act - Moreover, the said application was moved contrary to the notification dated 10.05.2007 and 16.01.2015 of Ministry of Finance (Department of Revenue), Government of India - In view of above facts, provisions of Act and notification, Bench is of the considered opinion that orders passed by Magistrate and ASJ/Special Judge, NDPS, New Delhi are bad in law, thus, deserves to be set aside - Accordingly, order dated 09.07.2020 passed by Magistrate and order dated 02.09.2020 passed by ASJ are hereby set aside - The petition is accordingly, allowed and disposed of: High Court [para 22 to 26]
-Petition allowed :DELHI HIGH COURT
2020-TIOL-2140-HC-MUM-CUS
MVB Enterprises Vs UoI
Cus - Application has been filed seeking extension of time for passing final adjudication order by the adjudicating authority - Related petition was heard and disposed of by this Court along with two other writ petitions by the common order dated 22nd September, 2020 = 2020-TIOL-1643-HC-MUM-CUS - As per the direction at sr. No.3, the adjudication process was directed to be completed within a period of four weeks - Counsel for the parties have informed the Court that the adjudication order was in fact passed on 27th November, 2020 which is slightly beyond the period of four weeks as per the direction noted above - Counsel for Revenue prays for condoning the delay in passing the adjudication order.
Held: Considering the fact that final adjudication order has in fact been passed on 23rd November, 2020, no further order is called for save and except that the additional time taken in passing the order-in-original following adjudication is accepted and condoned - Interim application is disposed of: High Court [para 6, 7]
-Application disposed of : BOMBAY HIGH COURT
2020-TIOL-2139-HC-MAD-CUS
ITC Ltd Vs CC
Cus - Respondent has passed an order dated 28.09.2018 under the provisions of the Customs Act, 1962 and it specifically mentions that if the petitioner is aggrieved, he can filed appeal u/s 129A of the Act with the CESTAT - however, the petitioner has not preferred any appeal before that Appellate Authority but has instead filed this Writ Petition on 10.12.2018 challenging the order passed by the Respondent.
Held: There is no acceptable explanation from the Petitioner for not having resorted to that alternative remedy provided under the statute - Supreme Court of India in Assistant Collector of Central Excise -vs- Dunlop India Limited = 2002-TIOL-156-SC-CX-LB has succinctly explained the legal position relating to the exercise of discretionary powers under writ jurisdiction that Article 226 is not meant to short-circuit or circumvent statutory procedures - Petitioner has sought permission of this Court to withdraw the Writ Petition with liberty to resort to that procedure - Court, without expressing any view on the correctness or otherwise on contentions of the Petitioner in that regard, makes it clear that the Petitioner is not precluded from making an application before the CESTAT to treat the amount said to have been recovered under the bond for Rs.40,00,00,000/- in satisfaction of the requirement of the pre-deposit, and the CESTAT after hearing the concerned parties shall pass orders thereon on merits and in accordance with law - Writ Petition is dismissed as withdrawn: High Court [para 3 to 5]
-Petition dismissed : MADRAS HIGH COURT
2020-TIOL-2138-HC-AHM-CUS
Ravindra Kumar Arya Vs CCGST & CE
Cus /CX - Tax appeal under Section 130 of the Customs Act, 1962 and Section 35 G of the Central Excise Act, 1944 is ordered to be admitted on the substantial questions of law as indicated - Notice to be issued to the respondent returnable on 19.01.2021 - Till the next date of hearing i.e. on 19.01.2021, no coercive steps shall be taken towards the recovery of demand: High Court [para 2]
- Matter posted : GUJARAT HIGH COURT
2020-TIOL-2137-HC-AHM-CUS
Prima Chemicals Vs UoI
Cus - Writ applicant seeks to challenge the legality and validity of the disclosure statement issued by the respondent No.2 dated 02.12.2020 pursuant to the on-going Anti-Dumping investigation on the imports of a product called ' pyrazolone ' exported from China.
Held: Bench is of the view that the writ applicant or any authorized representative of the writ applicant shall appear today (09.12.2020) before the Designated Authority at 3'o clock and point out what type of further information or details are required, so that on the basis of the same, the writ applicant can effectively represent its case on the issue in question - The Designated Authority may hear the writ applicant on this aspect and make an endeavour to resolve this controversy by furnishing the necessary details, if otherwise, there is no legal impediment coming in the way of the Designated Authority in furnishing such information - Prima facie, Bench is of the view that, the issue raised in this writ application does not require any serious adjudication and can be resolved amicably - Further developments in the matter shall be reported to the Court on the next date of hearing i.e. on 16.12.2020: High Court [para 5, 6]
- Matter posted : GUJARAT HIGH COURT
2020-TIOL-2136-HC-AHM-CUS
Laurel Apparels Pvt Ltd Vs CCGST & CE
Cus /CX - Tax appeal under Section 130 of the Customs Act, 1962 and Section 35 G of the Central Excise Act, 1944 is ordered to be admitted on the substantial questions of law as indicated.
Held: Notice to be issued to the respondent returnable on 19.01.2021 - Till the next date of hearing i.e. on 19.01.2021, no coercive steps shall be taken towards the recovery of demand: High Court [para 2]
- Notice issued : GUJARAT HIGH COURT
2020-TIOL-2135-HC-AHM-CUS
Bindal Silk Mills Pvt Ltd Vs CCGST & CE
Cus/CX - Tax appeal under Section 130 of the Customs Act, 1962 and Section 35 G of the Central Excise Act, 1944 is ordered to be admitted on the substantial questions of law as indicated - Notice to be issued to the respondent, returnable on 19.01.2021 - Till the next date of hearing i.e. on 19.01.2021, no coercive steps shall be taken towards the recovery of demand: High Court [para 2]
- Notice issued : GUJARAT HIGH COURT
2020-TIOL-2134-HC-AHM-CX
Chirpal Industries Ltd Vs UoI
CX/ST - SVLDRS-1 has not been accepted on the ground that the appeal filed by the writ applicant is pending with the Textile Committee (Cess) Tribunal at Mumbai and such tribunal is not included in the definition of Appellate Forums - Petitioner invites attention of the Court to the definition of the term "Appellate forum” defined in s.121(f) of the Finance Act, 2019 and also provisions of s.122 and s.123 of the Act, 2019 to emphasise that they only talk about appellate forum without specifying any particular forum.
Held: Notice to be issued returnable on 20.01.2021: High Court [para 4]
- Notice issued : GUJARAT HIGH COURT
2020-TIOL-2114-HC-MAD-CUS CC Vs Magal Engineering Tech Pvt Ltd
Cus - It was observed by the department that as per the Import Policy, the goods "Stainless Steel Plates, Sheets & Strips" requires compliance of mandatory BIS standards and the item under import does not figure in the list of exempted stainless steel grades, therefore, the goods under import need to be of BIS registered and since importer did not possess such a BIS registration certificate for the clearance, it appeared that the appellant has contravened the provisions of FTDR Act, 1992 read with the prohibitions imposed under the Steel and Steel Products (Quality Control) Order, 2018 - original authority passed an order directing absolute confiscation of the goods having assessable value of Rs.10,47,107/- and also directing for safe destruction of the goods at the cost of the importer besides imposing penalty of Rs.10,000/- under Section 112 (a) of the Customs Act, 1962 - Commissioner (Appeals) modified the order by setting aside the direction for absolute confiscation and destruction of the goods at the cost of the appellant - The goods were allowed to be redeemed on condition of re-export after payment of redemption fine which was directed to be quantified by the adjudicating authority within 15 days - however, penalty imposed was not disturbed - Later the Tribunal relied on its own finding in another matter, wherein it was held that no such condition that the goods can be redeemed only for re-export can be imposed - Similar view was taken in the case of M/s HBL Power Systems Ltd - Hence it was held that order passed by the Commr(A) that the goods could be redeemed only for re-export, was unjustified - The adjudicating authority was directed to quantify the redemption fine payable.
Held - Considering the contentions of both parties and considering the request by the Revenue's counsel, the imposition of condition of re-export under Section 125 of the Act was not justified and the imposition of such a condition is not envisaged in law and therefore, the order imposing such condition is liable to be set aside - Hence the order in question is set aside and it is directed that the demurrage, if any imposed on the assessee, will be treated as quashed and set aside and the goods in question may be released to the assessee forthwith without any condition: HC
- Revenue's appeal dismissed: MADRAS HIGH COURT
2020-TIOL-1684-CESTAT-BANG-LB
C Krishnaiah Chetty And Sons Pvt Ltd Vs CCE
CX - Appellants are engaged in dealing with Articles of jewellery - With effect from 1.3.2005, excise duty was imposed, as a budgetary measure, on branded jewellery - Notification No.4/2005-CE dated 1.3.2005 (Sl. No.14) prescribed duty at the rate of 2% on such branded jewellery - The Notification also had an Explanation explaining the term 'brand name or trade name' appearing in the Notification - However, the levy of excise duty was withdrawn with effect from 1.12.2005 - CBEC had also issued two clarifications [ F.No. B-1/1/2005-TRU dated 4.3.2005 and Circular NO. 354/203/2005-TRU dated 29.12.2005] in the context of levy of excise duty on branded jewellery - The jewellers who are the appellants in the present case have been getting jewellery made from goldsmiths who worked as job workers and which were sold through their showrooms- The items sold by the appellant-jewellers bore various abbreviations which varied from jeweller to jeweller - For example, the abbreviation 'CKC' was used by M/s. C. Krishnaiah Chetty & Sons Pvt. Ltd. and 'ABJ' was being used by M/s. Abharan Jewellers - The Department took the view that these marks which were affixed on their jewellery items are to be considered as brand names within the meaning assigned in the Notification No.4/2005-CX and hence, proceeded to levy excise duty on such jewellery items during the disputed period 1.3.2005 to 30.11.2005 - Against the confirmed demands, the appellants are before the CESTAT - Bench noticed that there are contradictory decisions by different Division Benches of Tribunal dealing with identical facts - In case of Titan Industries 2016-TIOL-1003-CESTAT-MAD relied upon by Revenue, Chennai bench of Tribunal has taken a view that the jewels embossed with such marks are branded jewellery and chargeable to Central Excise duty - However, the Delhi Bench of Tribunal in case of Anopchand Trilokchand Jewellers P. Ltd. 2017-TIOL-344-CESTAT-DEL has taken the opposite view, holding that these marks are not brand names but are in nature of jewellers mark and, hence, no excise duty is chargeable on such jewellery - Therefore, in view of the contradictory views expressed by two different Benches of Tribunal, the matter was referred to the President for setting up a Larger Bench to decide the issue.
Held: The Tribunal in Anopchand Trilokchand (supra) observed that inscription of two small letters "AT" on jewellery items cannot make the said letters "AT" a brand name unless these two letters "AT" are covered by the definition of brand name or trade name - The Tribunal noticed that the respondent had a different trade mark/brand name registered in its name which had not been used on the articles of jewellery and, therefore, letters "AT" could not be called brand name of the respondent - In Titan Industries (supra) the Tribunal noticed that the appellant was engaged in manufacture and sale of jewellery with brand name "TANISHQ" and when excise duty was levied on branded jewellery from 1 March, 2005, it paid excise duty on jewellery bearing brand name “TANISHQ”; that the appellant had also another brand name “GoldPlus” - However, subsequently, the appellant replaced the brand name "TANISHQ" and "GoldPlus" with marking "Q" and “I" and it is for this reason that the Tribunal did not accept the plea of the appellant that "Q" and "I" were embossed only for the purpose of identification of the jewellery and not as a brand name - Inasmuch as the Tribunal found that the appellant was a reputed branded jewellery manufacturer in India and in the past had been clearing jewellery under brand name "TANISHQ" and "GoldPlus", but had subsequently started embossing marks "Q" and "I" on the articles of jewellery - Bench, therefore, finds it difficult to perceive any conflict between the aforesaid two decisions of the Tribunal in Anoopchand Trilokchand and Titan Industries , as the decisions were based on the facts of the case - Thus, what has to be seen in each case is whether the brand name or trade name, which could be a mark used in relation to the product, indicates a connection in the course of trade between the product and some person using such name or mark with or without any indication of the identity of that person - It would, therefore, not be necessary for the Larger Bench to decide as it is the Division Bench which would have to decide the issues on merits - Bench, therefore, directs that the papers may be placed before the Division Bench concerned with the aforesaid opinion of the Larger Bench for deciding the appeals on merit: CESTAT LB [para 19 to 21, 23]
- Reference answered: BANGALORE CESTAT
2020-TIOL-1680-CESTAT-BANG
Silppi Constructions Contractors Vs CCE, C & ST
ST - There are two issues involved in appeal; firstly whether admittedly in case of composite contract wherein construction has been made by assessee for Government organizations and others, the demand has been rightly raised under 'Commercial or Industrial Construction Service' (CICS) for the period prior to 01.06.2007 - The other demand for Rs.2,39,74,843/- under Construction of Complex Service, issue has been settled in favour of assessee by Supreme Court in case of Larsen & Toubro Ltd. 2015-TIOL-187-SC-ST - Accordingly, this issue is settled in favour of assessee as the Supreme Court has held that a composite contract is works contract service w.e.f. 01/06/2007 - There is no proposal by Revenue to classify the said activity under Works Contract Service - Thus, prior to 01.06.2007, the activity is not taxable - As regards the second issue, the same is split into two parts - The first part is construction for Indian Navy, being flats construction for their personnel (MAP) - As such flats/apartments were not made for sale and construction is for one principal (the Ministry of Defence), the same is held to be not taxable in view of the law as clarified by Board Circular 108/2/2009- ST - As regards to the demand on construction to Seawood apartments, which the assessee has constructed for another builder/principal wherein the assessee have constructed the flats and handed over to principal, and have not sold any flat directly to buyer/occupier - In this regard, cement and steel have been admittedly supplied by principal to assessee - Allowing 67% of abatement is under the assumption that the contractor/assessee has supplied all the material involved in civil construction - Thus, assessee is not entitled for 67% abatement under notification 15/2004-ST - However, assessee is entitled to deduction of material component actually used by them in construction of the projects, Seawood Apartment - Assessee is also directed to produce the calculation of such material used by them along with the Chartered Accountant certificate and shall also produce other relevant records like VAT assessment order as required for proper determination - All penalties are accordingly set aside: CESTAT
- Appeal partly allowed: BANALORE CESTAT
2020-TIOL-1679-CESTAT-MUM
Chandan Steel Ltd Vs CC
Cus - The appeal of assessee, against impugned order upholding, save to the extent of modifying penalty to Rs. 25,000, the order of original authority re-determining the value of imported goods and confiscating the same for mis-declaration, can be disposed of on the basis of grounds of appeal as well as previous decisions of Tribunal in their own case - The re-determination has occurred owing to finding that part of the consignment of 14.590 metric tons of 'stainless steel melting scrap-316 grade', imported vide bill of entry with declared value of US $ 825 per metric ton was found to contain nine metric tons of secondary material - In view of the earlier decisions in assessee's own case, no reason found to disagree with the finding therein that report of visual examination of cargo does not offer sufficient evidence to conclude that the goods are to be used other than for the purposes claimed or that these had been mis-declared - The impugned order is set aside: CESTAT
- Appeal allowed: MUMBAI CESTAT
2020-TIOL-1678-CESTAT-MAD
Ford India Pvt Ltd Vs CC
Cus - The assessee-company is engaged in manufacture and sale of automobiles - The assessee imports various parts and components in pursuance thereto - An SCN was issued to the assessee after the CZU-DRI investigated its modus operandi and the goods declared by the assessee as 'catalytic converter asy' - The Revenue opined that in respect of the goods imported and declared by the assessee, it had claimed concessional rate of duty as per Sr No 265 of Notfn No 21/2002-Cus on which the assessee paid BCD of 5% as against the tariff rate of 7.5% - It was noted that the notified goods at Sl. No. 265 of Notification No. 21/2002 being just 'catalytic converter' and that the imported goods covered under three Bills-of-Entry above being found to be of different varieties which was in an assembled form - The assessee filed detailed reply to justify its classification and the concessional rate of duty claimed by it as per Notfn No 21/2002-Cus - On adjudication, the classification favored by the Revenue was sustained - Demand for differential duty was raised, along with demand for interest u/s 28, 28AA & 28AB of the Customs Act - Penalty u/s 114AA of the Act was also imposed and the imported goods were ordered to be confiscated - Hence the present appeals.
Held - The issue to be decided is the eligibility of catalytic converter assembly imported by the assessee to benefit of concessional rate of duty as per Notfn No 21/2002-Cus - As per the impugned Notification, the concessional rate of duty is for a particular item/goods; a perusal of the Bills-of-Entry placed along with the Appeal Memorandum reflects 'piece price' for the relevant item under 'description' column which would only mean that the price charged was for the described assembly and other than this, we do not see any breakup and nor is it relevant - There is no dispute regarding the classification of the disputed items under CTH 8421 duly - However, classification ipso facto does not decide the eligibility or otherwise to a beneficial Notification since Notification No. 21/2002 does not grant concession based on a mere classification, rather on individual items - Perusal of the SCN shows that the DRI entertained a doubt about as to whether the assessee claimed concession of duty for which it was otherwise ineligible as per Notfn No 21/2002-Cus - However, in the O-i-O, even though there are allegations in the SCN as to mismatch of the BoE the invoices furnished by the assessee and also as to the alleged glaring discrepancies, there is no finding recorded and thereby the allegations or suspicions in the mind of the Revenue authorities have not been taken to its logical conclusion in the O-i-O: CESTAT
- Appeals partly allowed: CHENNAI CESTAT |
